Will the newly elected Congress push Obama into being tougher on Iran's nuclear weapons program?

Now that both Houses of Congress are under the control of Republicans, will President Obama have as free a hand in making a deal with the Iranian mullahs regarding their nuclear weapons program?

Many members of Congress, in both chambers and on both sides of the aisle, believe that President Obama is willing to allow Iran to become a threshold nuclear weapons power, as long as they don't actually develop a nuclear bomb during his watch. Israeli leaders, both in the majority and in opposition fear the same thing. Nobody wants to see a nuclear armed Iran, and few want to see a military attack on Iran's nuclear weapons program, except as an absolute last resort. Everyone would like to see a good deal that assures the world that Iran will never develop nuclear weapons, and in return for that assurance ends the crippling sanctions against the Iranian people. The questions are what sort of a deal will bring us closer to this desirable outcome, and are the United States and its European allies demanding enough from Iran to assure compliance with a commitment not to weaponize its "civilian" program.

The newly elected Congress would like to play a role in addressing these questions, but the White House insists that the constitution empowers the executive branch alone—the president, his cabinet and his staff—to conduct the foreign policy of the United States. The White House is wrong.

The constitution divides the conduct of foreign policy between the executive and legislative branches, depending on the issue. For example, Article I expressly empowers Congress to "regulate commerce with foreign nations"; to "define and punish" crimes committed "on the high seas" and "against the law of nations"; to declare war; and to make rules governing "land and naval forces."

Even when it comes to making treaties, the senate must approve presidential decisions by a two thirds vote, and it must approve the appointment of ambassadors by a majority vote.

The framers intended this division of authority as part of its insistence on checks and balances, to assure that important decisions—including those affecting foreign policy—had to achieve the support of both the executive and legislative branches.

Its purpose was not to assure gridlock, but neither was it to allow one branch alone to make all important foreign policy decisions. Its purpose was to try to achieve a modicum of agreement, through negotiation and compromise, between the branches.

How does this constitutional division of power impact the current negotiations with Iran over its nuclear program, especially in light of the current partisan division between a Democratic president and a Republican-controlled Senate and House?

The answer depends on whether Congress chooses to assert its constitutional power to participate in foreign policy decisions. It is arguable that any deal with Iran will be enough like a treaty to warrant Senate approval, but even if that were not the case, any deal would necessarily require the removal of sanctions enacted by Congress. And Congress plainly has the power to refuse to reduce sanctions and indeed to strengthen them.

So President Obama will not have a completely free hand in making a deal with Iran. Nor should he. A president's term is fixed by the constitution, and there is a danger that a president may be somewhat shortsighted in his view of foreign policy, and willing to kick the can down the road in order to preserve his legacy. Congress, on the other hand, is a continuing institution with overlapping terms and significant responsibility in assuring that the short term interests of any given administration do not endanger the long term interests of the country. That is why Congress should demand a role in the ongoing negotiations with Iran.

The president may, however, insist that he and he alone has the authority to make a deal with Iran. This may create a constitutional conflict between the popular branches that may have to be resolved by the third branch of our government, namely judges appointed for life. It is unclear how the Supreme Court would resolve such a conflict. Indeed a case currently pending before the justices poses the issue of which branch gets to make foreign policy decisions in the context of a dispute between the executive and the legislature over whether Jerusalem is part of Israel for purposes of the passport of an American child born in Jerusalem. Although this issue is both narrow and highly technical and involves passports which are administered by the executive branch, the High Court may render a decision using broad language that implicates the Iranian negotiations. So we have to wait and see what the Supreme Court does and says. In the meantime Congress should not abdicate its responsibility to advise the president on this important foreign policy issue.

Comment on this item

9 Reader Comments

Charles Emelogu • Nov 17, 2014 at 09:19

I wonder if the President of The United States have some vested interest in Iran's nuclear program because ordinarily if the president and the Congress have the same interest, namely, preservation of civil liberty and freedom of expression and fundamental human rights in all the nation of the earth; something seriously scarce in the Muslim nations, would there indeed be any squabble over carrying everyone along constructively on the negotiation with Iran over their nuclear program.

For me, with such statements claiming the president would surreptitiously conclude the negotiation and sign some deal behind the stern gaze of the Congress there is cause for worry. No one deals in the dark if there is nothing to hide. I'm afraid, but though we know the president should be above suspicion we should still look closely because an Iran with nuclear weapon is Boko Haram, Hamas, Hezbolla, ISIS, Al Shabab, Al Kaida, all with nuclear weapons. Please Please Imagine such a world! Everyday new Islamist jihadists rise with murderous intents for their fellow men. America today has that onerous duty to protect the entire human race from such catastrophe. That's why Mr. Obama must not be allowed to make a bad deal. If he does it to spite Israel then he has murdered the entire world.

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Fred • Nov 15, 2014 at 21:06

How naïve can Obama be , no clue of recent history. Cast your mind back to the treaty in Munich. Chamberlain brandishing a piece of worthless paper proclaiming the infamous: "Peace in our time. " Well, it did not happen, one could see in Obama's pursuit of the Iranian Ayatollahs with the same idea. Peace will not happen, on the contrary it will encourage the Mullahs to pursue their destructive way. Guarantees for Israel safety would dissipate like the morning mist. One has never seen the slightest overture to a peaceful solution from the Iranian side.

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Yeshayahu Hollander • Nov 15, 2014 at 14:07

Didn't Congress force a US ambassador to the UN to vote against the wish of the President in the past?

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Elmer Borneman • Nov 15, 2014 at 12:36

The Constitution has checks and balances intended to prevent one branch of government from "going its own way." It, for the most part, has worked as intended because all parties played by the same rules. But now we witness one branch (Executive Branch) going "off the reservation" and giving the "finger" to the Constitution (and getting away with it.) If this is permitted to continue the Republic, and democracy as we know it, will be history. Who is going to save the Republic? The USA is at a critical juncture in its history.

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Michael Disney • Nov 15, 2014 at 08:28

No deals should be made with Iran until there is a least a hint of democracy. Any state ruled by religious fanatics should be isolated - especially the medieval mullahs that govern and who look upon Khomeini, the murderous, lying, vengeful fanatic with fondness.

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Aron Simis • Nov 15, 2014 at 07:39

Mr. Dershowitz said "...there is a danger that a president may be somewhat shortsighted in his view of foreign policy, and willing to kick the can down the road in order to preserve his legacy."I would simply replace "...there is a danger that a president may be somewhat" with "the current president is". No offense meant, just a cold translation of the president's foreign policy trajectory along his two mandates.Never has the official US attitude towards Israel been so backward and dangerous. It sounds like a (sad) joke arguing that it is all Bibi's fault. Behold, this is not only the old antisemitism refurbished, rather it is the new face of the leftist ideology throughout the planet. It starts with the name socialist and ends up where Stalin did. Are we free of this renovated atmosphere just because we feel we are different, more savant?

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Ariane Hechter • Nov 15, 2014 at 07:13

The President can act by decree. It is exactly what he intends to do with immigration. Did anybody say something about democracy in America ?!

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mikeKu • Nov 15, 2014 at 06:24

One wonders what the US is afraid of? The most powerful military, the most influential nation on earth and yet for some reason we seem to be kowtowing to the cutthroat Mullahs of Iran, a bunch of religious fanatics who unfortunately triumphed in the face of stupidity and arrogance of the Shah and his Savak. The notion that Iran will have the capability of building a nuclear device is beyond sanity. Allow me to relive a bit of history. In 1919 already, Hitler threatened the Jews; he did so again in 1923 and continuously thereafter until January 1933 when my father was so shocked that this madman came to power, that he quit smoking and remembering the words of Heinrich Heine 120 years before "there where books are burned, soon they will burn people." He left shortly thereafter. But the Nazi actions continued; the boycott, the book burning (including my grandfathers books), the Nuremberg Laws, Kristallnacht and then war. What does it take for a reasonable, educated, supposedly sane person to believe someone who says "We will wipe Israel off the map." Does POTUS not understand that; Bush before didn't either and said "that will be the problem for the next President." The question is what are we afraid of and why do we not insist that Iran's nuclear problem cease; hopefully, Congress has more sense than the White House.

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Ed in North Texas • Nov 14, 2014 at 20:24

Rule by Imperial Decree, er = make that Executive Order (EO) is the rule of the day in the US today. Barack Obama will do whatever he wishes and perhaps the Republicans will find a spine somewhere to actually do more than refuse to ratify whatever treaty he signs. No matter, His Imperial Executiveness will simply enact whatever he wishes through EO and also have the various Executive Branch departments and agencies use their rule making authority to add what he wishes to the Code of Federal Regulations.

Just think -- we used to have a Constitutional Republic. Congress and the people allowed the courts to usurp the lawmaking role, with unelected judges deciding not what the law says, but what they want the law to say and imposing that decision on us. Now we simply have an extension of that usurpation from multiple judges in multiple jurisdictions to one man over the whole country.

In 231 years (and a couple of months) the United States has progressed from freedom from rule by a King held somewhat in check by a Parliament to rule by a (wish to be) King held somewhat in check by a Congress. It has been 239 years (and almost 7 months) since the start of the American Revolution. I wonder how long it will be, if ever, before it is known as the First American Revolution. I'm no longer young and won't see many more Presidential terms of office to learn if that happens, or we find politicians to turn this around without another actual revolution.

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